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CASE NO.: Appeal (civil)  3942 of 2002

PETITIONER: A.P. HOUSING BOARD

RESPONDENT: MOHAMMAD SADATULLAH & ORS

DATE OF JUDGMENT: 13/04/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NOs. 3943/2002 and 3989/2003

C.K. THAKKER, J.

       All these appeals are filed against a common  judgment and order passed by the High Court of  Judicature, Andhra Pradesh at Hyderabad on March 29,  2000 in various writ petitions. Those writ petitions were  filed by the petitioners (Andhra Pradesh Housing Board,  land-owners and contesting respondents) aggrieved by  the judgment and order passed by the Special Court  established under the Andhra Pradesh Land Grabbing  (Prohibition) Act, 1982 (hereinafter referred to as ’the  Act’) in Land Grabbing Case (L.G.C.) No. 137 of 1989 on  September 4, 1995. The litigation has a chequered history and to  understand the controversy raised by the parties in the  present group of appeals, it is necessary to bear in mind  the facts and circumstances under which this Court is  called upon to resolve the controversy. One Farhatulla, father of original petitioner Nos. 1  to 3 and husband of petitioner No.4 before the Special  Court, was the owner of land bearing Survey Nos. 45-48,  admeasuring 45 acres, of Yousufguda village in the limits  of Golkonda Mandal, Hyderabad in the State of Andhra  Pradesh. It appears that the Andhra Pradesh Housing  Board wanted the land for a public purpose i.e., for the  construction of dwelling units for its employees (’Vengal  Rao Nagar Housing Board Colony’). A requisition was,  therefore, made for acquisition of land under Section 22A  of the Andhra Pradesh Housing Board Act, 1962  (hereinafter referred to as ’the Housing Board Act’) for  ’Housing Scheme’. A notification was issued on August 5,  1965 and was published in Government Gazette on  August 26, 1965. Special Deputy Collector was  authorized by the Government by an order dated October  24, 1967 to exercise power under the Land Acquisition  Act, 1894. Notification under Section 4(1) was issued on  March 1, 1968. Notices were also given to the persons  interested in the land and for hearing of objections. An  inquiry under Section 5A was conducted and final  notification under Section 6 was issued on December 30,  1968. In the final notification, it was stated that the land  admeasuring 45 acres of Survey Nos. 45 to 48 would be  required for public purpose. Notices under Sections 9  and 10 were issued and an Award No.5 was passed on

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December 31, 1971 by the Special Deputy Collector,  Land Acquisition, Housing Board. The said Award was  not challenged by any party and it had become final and  binding. It is also clear from the record that though the  acquisition was in respect of 45 acres of land and the  Award was also passed for 45 acres, the Housing Board  could take possession of only 43 acres land. It could not  acquire possession of two acres of land since it was  occupied by hut dwellers. In the Award itself, a direction  was given that an amount of Rs.50,094/- which was the  compensation towards two acres of land which could not  be taken possession of because of existence of huts,  should be deposited in the treasury and such amount  should be paid to the land-owners only after they evict  the hut dwellers and deliver possession of the said land  to the Housing Board. The Land Grabbing Case relates to  the said two acres of land which will hereafter be referred  to as the ’petition schedule land’. The land-owners had not received compensation of  Rs.50,094/- in respect of two acres of land.  They,  therefore, asserted that they continued to remain owners  of the land and submitted an application to the  Municipal Corporation of Hyderabad (MCH) to sanction  layout for sub-division of two acres of land of Survey  No.45. The MCH, however, asked the land-owners to  furnish ’No Objection Certificate’ (NOC) from the Housing  Board as also Clearance Certificate (CC) from the Special  Officer and Competent Authority under the Urban Land  (Ceiling and Regulation) Act, 1976. Since NOC was not  granted by the Housing Board nor layout sanctioned by  MCH, the land-owners filed a petition being Writ Petition  No. 4194 of 1988 challenging the requirement of NOC by  the Housing Board and directing MCH to sanction layout  without insisting for NOC from the Housing Board and  declaring that land acquisition proceedings in respect of  the said land had lapsed. The High Court allowed the  petition and granted the relief by judgment and order  dated December 8, 1988. It was held by the High Court  that the possession could not be taken by the Housing  Board of two acres of land nor the amount was paid to  the owners and the proceedings lapsed. In view of the  findings recorded by the High Court in the Writ Petition,  the petitioners-land-owners filed Land Grabbing Case  (L.G.C.) No. 137 of 1989 in the Special Court under the  Act and prayed for eviction of unauthorized encroachers  in two acres of land owned by late Farhatulla, father of  petitioner Nos. 1 to 3 and husband of petitioner No.4. A counter was filed by respondent Nos.1 to 3, inter  alia, contending that they and their forefathers had been  in possession of the land said to have been encroached  by them and they were cultivating it since time  immemorial. They and their predecessors were in actual  occupation of land and their possession was never  objected by the petitioners. The Land Acquisition Officer  who passed the Award also held that huts were found in  existence on the ’petition schedule land’ since about  forty-five years. Thus, the respondents had also perfected  their title by adverse possession. It was further stated  that they had filed Original Suit No. 1550 of 1985 in the  Court of IVth Additional Judge, City Civil Court,  Hyderabad and had obtained interim injunction against  the petitioners restraining them from interfering with  their possession over the ’petition schedule land’. The  respondents applied for layout from MCH and also  constructed houses on the said land. It was stated that

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when MCH caused obstruction against such  construction, the respondents filed Writ Petition No.  29886 of 1986 and obtained interim relief. Farhatulla  admitted in Criminal Case No. 259 of 1974 on the file of  the IVth Metropolitan Magistrate that he had no title  deeds in respect of the ’petition schedule land’ and did  not personally occupy it at any time except half an acre.  It was further stated that petitioner No.1 also made  similar statement in Original Petition No. 258 of 1979 on  the file of the 1st Additional Judge, City Civil Court,  Hyderabad. It was asserted that most of the residents in  the ’petition schedule land’ were paying land revenue and  they should be deemed to be pattadars and in possession  of the said land, notwithstanding the wrong entries made  in the Revenue Records. As the petitioners had no title  over the ’petition schedule land’ and respondent Nos. 1 to  3 and their predecessors in title had acquired title by  adverse possession over the land, they could not be  treated as ’land grabbers’. Respondent No. 4 filed a separate counter,  contending that one Raj Lakshmana Rao, Jagirdar of  Yousufguda village granted five acres of land of Survey  No. 45 in the year 1940 as Inam which included the  ’petition schedule land’ to his father P. Venkaiah for  clearing the jungle and for removing the boulders found  in it. The said P. Venkaiah was regularly paying land  revenue for that five acres of land and was cultivating it  by raising dry crops. Ultimately, the said Jagirdar  granted patta in favour of P. Venkaiah. The father of  Respondent No.4 died long back and he found Urdu  document with the Seal of Jagirdar of Yousufguda village.  When translated, it was found to be a patta certificate  issued by late Jagirdar Lakshmana Rao in favour of  father of respondent No.4. Thus, he was the owner and  possessor of land of Survey No. 45 admeasuring five  acres and cannot be treated as ’land grabber’. He had  been in occupation of the land being claimed by him  since the time of his father, he is entitled to patta rights  under Rule 2 of the Rules regarding grant of pattadar  rights in Khalsa village. Respondent Nos. 5 and 6 filed a common counter. It  was their case that land in Yousufguda village was  included in the municipal limits of MCH long back. It is  now fully developed urban area used for building  purposes. According to them, if the ’petition schedule  land’ belonged to late Farhatulla as was claimed by the  petitioners, it should have been shown in their  declaration under Section 6 of the Urban Land (Ceiling  and Regulation) Act, 1976. But it was not included.  According to these respondents, they purchased 1760 sq.  yards from the ’petition schedule land’ along with  structures thereon which was surrounded by a  compound wall. After obtaining necessary permission  from MCH, they had made construction on the property.  In the written submissions filed before this Court, they  have stated that they have improved the property and  have built a four-storey building in 1986 and are running  a college since about two decades. They stated that  Yousufguda village was an ex-Jagir village of Lakshmana  Rao, the Jagirdar. Though it was claimed on behalf of the  petitioners that late Farhatulla had purchased fifty acres  of land of Survey Nos. 45 to 48, the sale deed in respect  of the said transaction was not filed. It was further stated  that the erstwhile Government of Hyderabad framed  Rules in 1356 Fasli regarding the grant of pattadari

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rights in non-Khalsa villages (Jagir villages). Under Rule  2, all persons who held Jagir lands paying land revenue  in all the Jagirs were deemed to be pattadars of the land  held by them, notwithstanding any oral or written  agreement between the Jagirdars or any other person  and also notwithstanding any entry contrary to that  effect in the concerned village records. Rule 3 of the  Rules required the Revenue Authorities to record the  names of actual occupants. Rule 4 directed that the  names of the Jagirdars should not be recorded in the  Revenue Records as pattadars of lands, unless Jagirdars  were personally cultivating such lands. Under Rule 5, the  Jagir ryots were entitled to restoration of possession of  the lands that were in their cultivation even if they were  evicted by the Jagirdars. Rule 6 made the rights accrued  to the Jagir ryots heritable. Though the Rules were not  implemented prior to the abolition of Jagirs, the Revenue  Officials were directed to implement them by Circular  No.2 of 1949. Late Farhatullah worked as Collector in the  Revenue Department and his services were terminated  after a police action. In his capacity as the District  Collector, he got the entries manipulated in the Revenue  Records in his favour ignoring the existing facts as to  occupation of Jagir ryots. Respondent Nos.5, 6 and other  respondents, who were alleged to have grabbed the  ’petition schedule land’, were in actual occupation of the  lands since more than 50 years. On that ground,  possession of the land could not be taken over from  them. Neither Farhatulla nor the Government could get  the land vacated. Even if it were taken for granted that  Farhatullah or the Government had title over the ’petition  schedule land’, their rights got extinguished as  respondents had perfected their title over the said land  by ’adverse possession’. Respondent No. 8 raised contentions that his  forefathers had been in possession of the land and were  cultivating it. Respondent No.12 in his reply stated that  he had purchased 577 square yards of land with a house  situated in Bharat Nagar Colony which was a portion of  ’petition schedule land’ under a registered sale deed  dated December 14, 1984 from respondent No.8 and he  could not be described as ’land grabber’. Respondent Nos. 14 and 15, in their common  counter, contended that they had purchased 279 square  yards of land which was the portion of ’petition schedule  land’ under a registered sale deed dated April 11, 1986  from one Kurupaiah who was the owner of the land. It  was further stated that when Koteswara Rao tried to  interfere with their possession, they filed Original Suit  No. 1721 of 1986 in the Court of IXth Assistant Judge,  City Civil Court, Hyderabad and obtained interim  injunction. Respondent No.16 in his counter contended  that he had purchased 350 square yards of the ’petition  schedule land’ under a registered sale deed dated March  4, 1985 from one Chandraiah who had occupancy rights  over the said land. He also contended that he had  perfected his title over it by ’adverse possession’. He was  in occupation of the purchased land since then.  Respondent No.18, in his counter, stated that he had  purchased 279 square yards of land which was a portion  of ’petition schedule land’ along with respondent No.17  under a registered sale deed dated April 11, 1980 from  Kurupaiah who was having occupancy rights over the  land. He stated that he had also perfected his title by  ’adverse possession’. He refers to Original Suit No. 1719

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of 1986 on the file of IIIrd Assistant Judge, City Civil  Court, Hyderabad against Koteswara Rao who was said  to be an agent of petitioner Nos.3 and 4. He stated that  the suit was filed since Koteswara Rao tried to interfere  with their possession. Respondent No.19 filed a separate counter  contending that he had purchased 234 square yards of  land and a portion of the house by a registered sale deed  dated April 15, 1986 from Kurupaiah and was in  possession and enjoyment of it. Respondent No.35 in his  reply contended that he and respondent No.34 purchased  the house of 540 square yards from a portion of ’petition  schedule land’ from one P. Francie s/o Papaiah under a  registered sale deed dated April 30, 1985 and were in  occupation of the said land since the date of purchase.  According to them, they were residing in their native  village in Guntur District and in their absence,  respondent No.22\027Housing Board demolished the  existing structures and constructed a compound wall in  the place of fencing in the year 1992 enclosing the site  purchased by them. They could not do anything and they  were entitled to get back their property from Respondent  No.22. Respondent No.36 in the counter contended that he  purchased 800 square yards of land with a house which  was a portion of the ’petition schedule land’ from one  M.P. Jeevaratnam, s/o Pochaiah under a registered sale  deed dated April 30, 1985 and since then he was in  occupation thereof. Respondent No. 22 was A.P. Housing Board  (impleaded later on). The Board, in its counter, inter alia,  contended that it was the absolute owner and in  possession of the land covered by Award dated 31st  December, 1971. Under the Award, compensation in  respect of two acres of land of Survey No.45 was to be  paid to Farhatullah, the pattadar on his handing over  vacant possession of the said land to A.P. Housing Board.  The possession could not be given to the Board by the  land-owner since there were huts thereon. The amount in  respect of two acres of land, therefore, was ordered to be  deposited. In the order of the High Court dated December  8, 1988 in Writ Petition No. 4194 of 1988, it was held  that Award to the extent of two acres of land was illegal  and respondent No.22 Board had not acquired any right  over the said land. According to Housing Board, it had  preferred a Writ Appeal against the said order and hence  it could not be said that the order of the High Court had  become final. In the duly sanctioned layout by the  Director of Town Planning, it was clearly demarcated that  two acres of land was covered by huts. As per the order  passed in Writ Petition No. 1803 of 1991 filed against  Housing Board by Indira Nagar Hut Dwellers Association,  Yousufguda, the High Court directed the Association to  approach a Civil Court for appropriate relief. According to  the Board, it had erected a fencing, constructed a rest  room and also displayed a board that the land so fenced  belonged to the Board. The area within the fencing was in  occupation of the Board under the Award dated  December 31, 1971. Neither the petitioners nor the  respondents had any right to claim the said area covered  by the fencing. An additional counter was also field by the Housing  Board wherein it was contended that the land around  which the Housing Board fenced, formed part of 43 acres  of land, the possession of which was delivered to the

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Board under Award No. 5 of December 31, 1971.  According to the Board, the land claimed by the  petitioners was not the one that was not taken  possession by the Housing Board on the ground that the  land was occupied by the hutment-dwellers, was  encroached and huts were in existence. The ’petition  schedule land’ in Land Grabbing Case and the land in  respect of which Writ Petition No. 4194 of 1988 was filed,  were different. The land for which approval of the layout  was sought from MCH and the land under the Writ  Petition were also different. It was, therefore, submitted  that neither the Board can be said to be ’land grabber’  nor the petitioners were entitled to any relief. On the basis of the pleading of the parties, the  Special Court framed requisite issues, examined  witnesses, perused the record, considered the evidence  adduced by the parties and passed final order on  September 4, 1995 partly allowing the petition and  directing the Revenue Divisional Officer to take  appropriate steps to deliver possession of the ’petition  schedule land’ to the petitioners by evicting the A.P.  Housing Board within two months and report compliance  in accordance with law. It, however, held that respondent  Nos. 4 to 6 had perfected their title over the land  possessed by them by ’adverse possession’. The Court  granted liberty to respondent Nos. 14, 16 to 18 and 34 to  36 to establish before a regular Civil Court their title in  respect of land in their possession clarifying that the  judgment rendered by it would not affect the rights of  those respondents. In this connection, the Special Court concluded; On the basis of the evidence on record, we  gave finding that the Petition-Schedule site in this  LGC is the site shown as ABCDEFGH in Ex. B-35  plan which is admittedly in occupation of R-4 to R-6  and R-22 (A.P. Housing Board).  In view of our  finding that R-4 to R-6 have perfected their title over  the sites in their occupation which are shown in Ex.  B-35 within the area marked as ABCDEFGH, we  find that they cannot be treated as land grabbers.   For want of evidence regarding the identity of the  site alleged to have been grabbed by other  respondents other than R-22, we find that they  cannot be treated as land grabbers.  It is not the  contention of the petitioner that R-22 is a land  grabber. Hence, we find that none of the  Respondents in the LGC are land grabbers.  As  regards title of the site in the Petition-Schedule land  covered by Ex. B-5, B-8, B-9, B-40 and B-41 Sale  Deed, the Petitioners and the vendees under the  said Sale Deeds are at liberty to establish their title  in the result Civil Courts.

Being aggrieved by the judgment of the Special  Court, writ petitions were filed in the High Court of  Andhra Pradesh. Whereas A.P. Housing Board had  grievance against the direction to hand over possession of  two acres of land to the petitioners, original petitioners  were aggrieved by the order of the Court in not allowing  their petition in its entirety. Respondent No.4 as also  respondent Nos. 34 to 36 were also not satisfied with the  order passed by the Special Court and they also  approached the High Court. The High Court, by a common judgment dated  March 29, 2000 dismissed all the petitions. The aggrieved

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appellants have challenged the said decision in this  Court. Leave was granted by this Court and appeals were  admitted. All the appeals have now been placed for final  hearing before us. We have heard the learned advocates for the parties  at length. The learned counsel for A.P. Housing Board (C.A.  No. 3942 of 2002) contended that the expression ’land  grabber’ in the Act cannot include the ’Government’ or  instrumentality of ’State’ and neither the Government nor  such instrumentality of ’State’ can be held to be ’land  grabber’ under the Act.  According to him, the expression  ’person’ would contextually mean natural person only  and not artificial, legal or juristic person. It was also  urged that Special Court established under the Act had  no jurisdiction to pass an order of eviction against the  Housing Board. The counsel submitted that the High  Court was not justified in observing that it was open to  the parties to establish their right to the property in any  other forum. All questions ’under the Act’ ought to have  been decided by the Special Court keeping in view the  relevant provisions of law. It was urged that when  proceedings had been taken under the Land Acquisition  Act and Award was passed for acquisition of 45 acres of  land, it could not be held that the Housing Board had not  become owner of two acres of land, possession of which  could not be delivered to the Board by the land owners  since the land was encroached upon by hutment  dwellers. The land stood vested in the Housing Board free  from all encumbrances and the land owners thereafter  had no right, title or interest therein. It was admitted that  though writ petition filed by the land owners was allowed  by the High Court and the said decision had attained  finality, the land covered by the decision was different. It  was also argued that once the Special Court recorded a  finding that Housing Board could not be said to be ’land  grabber’, it had no jurisdiction to issue any direction to  the Revenue Authorities to handover possession of two  acres of land to the land owners from the Housing Board.  The only order which could have been passed by the  Special Court was to dismiss the petition. It was,  therefore, submitted that the appeal filed by the Housing  Board deserves to be allowed by setting aside the order  passed by the Special Court as well as by the High Court. Civil Appeal No. 3989 of 2003 was filed by the  respondent No. 4 in Land Grabbing Case. According to  him, the Special Court as well as the High Court were  right in upholding his contention that he was in adverse  possession of the land and had become owner thereof.  Both the Courts, however, were wrong in recording a  finding that he had perfected his title only in respect of  770.55 square yards of land. According to him, he had  perfected his title for five acres of land and his prayer  deserves to be granted by this Court. Civil Appeal No. 3943 of 2002 was filed by original  petitioners-landowners. Their case is that they were the  owners of the suit property and neither the Housing  Board nor other respondents had any right, title or  interest in the land. It was submitted that the Special  Court committed an error of law in holding that some of  the respondents including respondent No. 4 had  perfected their title by way of adverse possession. Such a  finding could not have been recorded by Special Court  established under the Act. It was also submitted that  both the Courts were right in holding that out of forty-five

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acres of land said to have been acquired by the A.P.  Housing Board, possession of only forty-three acres of  land could be obtained by the Board and amount of  compensation was paid for the said land. In respect of  two acres of land, neither the possession could be taken  by the Board nor amount of compensation was paid by it.  Obviously the Housing Board did not become owner of  two acres of land. The Housing Board, therefore, could  not claim ownership over that land. The appellants,  hence, applied for layout of two acres of land to MCH.  But when MCH insisted for No Objection Certificate  (NOC) from the Housing Board, they were constrained to  approach the High Court and the High Court held that  the Board had no right over two acres of land and the  land owners continued to remain owners of the property.  No appeal had been filed against the said order and it  had become final and binding. In view of the said finding,  the Special Court as well as the High Court were right in  ordering handing over possession of the land to them.  According to the appellants, however, the Special Court  and the High Court were wrong in not granting relief  against the other respondents. It was also contended that  the Special Court exceeded its jurisdiction in entering  into the question of adverse possession which was not in  the domain of Special Court. Such a question could be  decided only by a Civil Court. The High Court, in the  circumstances, ought to have allowed the writ petition  filed by the land-owners and ought to have set aside the  finding as to ownership of respondents by adverse  possession. It was, therefore, submitted that the appeal  filed by the land-owners deserves to be allowed. Before we deal with the contentions of the parties, it  would be appropriate if we hurriedly glance the relevant  provisions of the Act. The Preamble of the Act states that  the Act has been enacted with a view to prohibit the  activity of land grabbing in the State of Andhra Pradesh  which has adversely affected public order and it was,  therefore, necessary to arrest and curb immediately such  unlawful activity. In the statement of objects and reasons, it has been  observed; Statement of Objects and Reasons

"It has come to the notice of the Government  that there are organised attempts on the part  of certain lawless persons operating  individually and in groups to grab either by  force, or by deceit or otherwise lands belonging  to the Government, a local authority, a  religious or charitable institution or  endowment, including a wakf or any other  private person. The land grabbers are forming  bogus cooperative housing societies or setting  up fictitious claims and including in large  scale and unprecedented and fraudulent sales  of land through unscrupulous real estate  dealers or otherwise in favour of certain  section of people, resulting in large scale  accumulation of the unaccounted wealth. As  public order is also adversely affected thereby  now and then by such unlawful activities of  land grabbers in the State, particularly in  respect of urban and urbanisable land, it was  felt necessary to arrest and curb such  unlawful activities immediately by enacting a

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special law in that regard."   It has been further stated: "Whereas there are organized attempts on the  part of certain lawless persons operating  individually and in groups, to grab, either by  force or by deceit or otherwise, lands (whether  belonging to the Government, a local authority,  a religious or charitable institution or  endowment, including a wakf, or any other  private persons) who are known as ’land  grabbers’.

And whereas such land grabbers are forming  bogus co-operative housing societies or setting  up fictitious claims and indulging in large  scale and unprecedented and fraudulent sales  of lands belonging to the Government, local  authority, religious or charitable institutions or  endowments including a wakf or private  persons, through unscrupulous real estate  dealers or otherwise in favour of certain  sections of the people resulting in large  accumulation of unaccounted wealth and  quick money to land grabbers;

And whereas, having regard to the resources  and influence of the persons by whom, the  large scale on which and the manner in which,  the unlawful activity of land grabbing was, has  been or is being organized and carried on in  violation of law by them, as land grabbers in  the State of Andhra Pradesh, and particularly  in its urban areas, it is necessary to arrest and  curb immediately such unlawful activity of  land grabbing;

And whereas public order is adversely affected  by such unlawful activity of land grabbers\005"

\027that the Act has been enacted.

Section 1 states that the Act extends to the whole of  the State of Andhra Pradesh and applies to the lands  specified therein. Section 2 is ’legislative dictionary’ and  defines certain terms. For our purpose, the terms ’land  grabber’ [clause (d)] and ’land grabbing’ [clause (e)] are  material and they may be reproduced; 2 (d) "land grabber" means a person or a  group of persons who commits land grabbing  and includes any person who gives financial  aid to any person for taking illegal possession  of lands or for construction of unauthorized  structures thereon, or who collects or  attempts to collect from any occupiers of  such lands rent, compensation and other  charges by criminal intimidation, or who  abets the doing of any of the above mentioned  acts, and also includes the successors in  interest; 2 (e) "land grabbing" means every activity of  grabbing of any land (whether belonging to  the Government, a local authority, a religious  or charitable institution or endowment,

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including a wakf, or any other private person)  by a person or group of persons, without any  lawful entitlement and with a view to illegally  taking possession of such lands, or enter into  or create illegal tenancies or lease and licence  agreements or any other illegal agreements in  respect of such lands, or to construct  unauthorized structures thereon for sale or  hire, or give such lands to any person on  rental or lease and licence basis for  construction, or use and occupation of  unauthorized structures; and the term "to  grab land" shall be construed accordingly",

Section 3 declares land grabbing in any form to be  unlawful and an offence punishable under the Act.  Section 4 prohibits land grabbing and prescribes  punishment for committing an offence of land-grabbing.  Section 5 is also a provision for other offences in  connection with land grabbing and prescribes penalties.  Section 6 does not spare even Companies from the  consequences of conviction and punishment, if they  commit an act of land-grabbing. Section 7 of the Act  enables the Government to constitute Special Courts  for  the purpose of providing speedy inquiry into the alleged  act of land grabbing and trial of cases in respect of the  ownership and title to, or lawful possession of the land  ’grabbed’. The relevant part of the said section reads  thus; "7. Constitution of Special Courts :- (1) The  Government may, for the purpose of  providing speedy enquiry into any alleged act  of land grabbing, and trial of cases in respect  of the ownership and title to, or lawful  possession of, the land grabbed, by  notification, constitute a Special Court. (2) A Special Court shall consist of a  Chairman and four other members, to be  appointed by the Government. (3) The Chairman shall be a person who is or  has been a Judge of a High Court and of the  other four members, two shall be persons  who are or have been District Judges  (hereinafter referred to as Judicial Members)  and the other two members shall be persons  who hold or have held a post not below the  rank of a District Collector (hereinafter  referred to as Revenue Members ): Provided that the appointment of a person  who was a Judge of a High Court as the  Chairman of the Special Court shall be made  after consultation with the Chief Justice of  the High Court concerned;  Provided further that where a sitting Judge of  a High Court is to be appointed as Chairman,  such appointment shall be made after  nomination by the Chief Justice of the High  Court concerned, with the concurrence of the  Chief Justice of India. (4) The Government from time to time  likewise reconstitute the Special Court  constituted under sub-section (1) or may, at  any time abolish such Special Court. (4A) The Chairman or other member shall  hold office as such for a term of two years

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from the date on which he enters upon his  office, or until the Special Court is  reconstituted or abolished under sub-section  (4), whichever is earlier. (4B)(a) Subject to the other provisions of this  Act, the jurisdiction, powers and authority of  the Special Court may be exercised by  benches thereof one comprising of the  Chairman, a judicial member and a Revenue  member and the other comprising of a  Judicial Member and a Revenue Member. (b) Where the bench comprises of the  Chairman, he shall be the Presiding Officer of  such a bench and where the bench consists  of two members, the Judicial Member shall  be the Presiding Officer. (c) It shall be competent for the Chairman  either suo motu or on a reference made to  him to withdraw any case pending before the  bench comprising of two members and  dispose of the same or to transfer any case  from one bench to another bench in the  interest of justice. (d) Where it is reasonably apprehended that  the trial of civil liability of a person accused of  an offence under this Act, is likely to take  considerable time, it shall be competent for  the Chairman to entrust the trial of the  criminal liability of such offender to another  bench in the interest of speedy disposal of the  case. (e) Where a case under this Act is heard by a  bench consisting of two members and the  members thereof are divided in opinion, the  case with their opinions shall be laid before  another judicial member or the Chairman  and that member or Chairman, as the case  may be, after such hearing as he thinks fit,  shall deliver his opinion and the decision or  order shall follow that opinion. (5) The quorum to constitute a meeting of any  bench of the Special Court shall be two. \005    \005    \005    \005    \005    \005.   \005  (5D) (i). Notwithstanding anything in the  Code of Civil Procedure, 1908 (5 of 1908), the  Special Court may follow its own procedure  which shall not be inconsistent with the  principles of natural justice and fair play and  subject to the other provisions of this Act and  of any rules made thereunder while deciding  the civil liability.

(ii) Notwithstanding anything contained in  Section 260 or Section 262 of the Code of  Criminal Procedure, 1973 (2 of 1974) every  offence punishable under this Act shall be  tried in a summary way and the provisions of  Sections 263 to 265 (both inclusive) of the  said Code shall, as far as may be, apply to  such trial.

(iii) When a person is convicted of an offence  of land grabbing attended by criminal force or  show of force or by criminal intimidation, and  it appears to the Special Court that, by such

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force or show of force or intimidation the land  of any person has been grabbed, the Special  Court may if it thinks fit, order that  possession of the same be restored to that  person after evicting by force, if necessary,  any other person who may be in possession  of the property.

(6) No act or proceeding of the Special Court  shall be deemed to be invalid by reason only  of the existence of any vacancy among its  members or any defect in the Constitution or  re-constitution thereof.

Section 7A allows creation of Special Tribunals and  prescribe their powers. Section 8 deals with powers and  procedure of Special Courts. Under Section 9, Special  Courts have all the powers of Civil Court and the Court of  Session in conducting the cases before it. Section 10  declares law relating to burden of proof and enacts that  where in any proceeding under the Act, a land is alleged  to have been grabbed and prima facie case is made out, it  will be presumed that the person is a land grabber and  burden of proving that the land had not been grabbed by  him shall be on such person. Whereas Section 14  protects persons acting in good faith, Section 15 gives  overriding effect to the Act over other laws. The scheme of the Act is thus clear that it is a  special legislation enacted with a view to deal with and  decide cases of land grabbing expeditiously. In  interpreting the provisions of the Act, the said objective of  the legislature has always to be kept in view. The provisions of the Act came up for consideration  before this Court in few cases. In Konda Lakshmana  Bapuji v. Government of A.P. & Ors., (2002) 3 SCC 258 :  JT 2002 (2) SC 253, a decision rendered by Special Court  under the Act and confirmed by the High Court came to  be challenged in this Court. One of the considerations  before this Court was as to whether the Special Court  could entertain a suit when there was bona fide dispute  of title by the other side. The Court considered the  relevant provisions of law and held that when the  petitioner alleges that the respondent is land grabber,  Special Court has jurisdiction to inquire into the dispute  and it can pass an order and issue direction if it comes to  the conclusion that there was ’land grabbing’ and the  respondent is a ’land grabber’. The Court considered the  definition clause and the expressions ’land grabber’ and  ’land grabbing’ and held that whenever there is land  grabbing under the Act, proceedings can be initiated and  the case can be decided by Special Court constituted  under the Act. The Court also held that for the purpose of  taking cognizance of a case under the Act, existence of an  allegation of any act of land grabbing is sine qua non and  not the truth or otherwise of the allegation. But to hold  the person to be a ’land grabber’, it is necessary to find  that the allegations satisfying the requirement of land  grabbing are proved. To make out a case under the Act,  therefore, the petitioner before the Special Court must  plead and prove two ingredients, namely, possidendi i.e.,  factual possession and animus i.e., intention of the  person who is alleged to have grabbed land. If the two  conditions are fulfilled, Special Court has jurisdiction to  deal with and decide the matter and an appropriate order  can be passed under the Act. It was also held that the

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jurisdiction of High Courts under Article 226 as also of  this Court under Article 136 of the Constitution is limited  and findings of the fact arrived at by the Special Court  cannot be interfered with in exercise of constitutional  jurisdiction. The law laid down in Konda Lakshmana  Bapuji was reiterated and quoted with approval in State  of A.P. v. P.V. Hanumantha Rao (dead) through L.Rs. &  Another, (2003) 10 SCC 121 : JT 2003 (7) SC 438 by  observing that an order passed by the Special Court can  be interfered with by a High Court in exercise of power of  judicial review where (1) there is an error manifest and  apparent on the face of the proceedings such as when it  is based on clear misreading or utter disregard of the  provisions of law, and (2) a grave injustice or gross failure  of justice has occasioned thereby. [See also Gouni Satya  Reddi v. Government of A.P. & Ors., (2004) 7 SCC 398]. So far as the facts of the present proceedings are  concerned, forty-five acres of land of Survey No. 45  belonged to the land-owners was sought to be acquired  for the purpose of construction of quarters by the A.P.  Housing Board. Forty-three acres of land only could be  acquired and possession of two acres of land could not be  obtained by the Board. Amount of compensation was  paid to the land-owners in respect of forty-three acres of  land only. The land-owners, therefore, applied to MCH for  layout for two acres of land. When MCH insisted for NOC  by the Housing Board, the land-owners filed a writ  petition in the High Court of Andhra Pradesh that in view  of the fact that they were not paid compensation for two  acres of land and actual possession of the land had never  been received by the Housing Board, it had no right  whatsoever over the said land. MCH, therefore, could not  insist on obtaining of NOC from Housing Board. The High  Court heard both the parties. It also referred to orders  issued by A.P. Housing Board and an order passed by the  Government on March 13, 1979. In paras 4 & 5 of the  order, the Government observed: "4.     The Chairman, A.P. Housing Board has  reported that there is a lot of litigation involved  on the land in question and it is not possible  to take possession of this piece of two acres of  land even if houses are allotted to the  satisfaction of the rival groups. The amount of  Rs.50,094/- belonging to the Housing Board is  unnecessarily locked up with the special  Deputy Collector (Land Acquisition) and either  the special Deputy Collector of the Board is not  in a position to decide whether hut dwellers  have got any claim over this land since the  Special Deputy Collector (Land Acquisition)  has accepted Sri Farhatullah is the owner of  the land in the award passed by him. Moreover  it is also reported that this piece of land is  shown as long spice in the sanctioned layout of  the colony. As such, the Board is not  interested to have this land for taking up a  Scheme. Therefore, the Chairman has  suggested that the Special Deputy Collector  (Land Acquisition) may be instructed to de- notify this land from acquisition and return  the amount deposited with him by the Housing  Board.

5.      Government having examined the matter  carefully accept the proposal of the Chairman,

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A.P. Housing Board and direct the Special  Deputy Collector, Land Acquisition  (Hyderabad) to send proposals for  denotification of the land in question from  acquisition and return the amount deposited  with him by the A.P. Housing Board."

On the basis of the said order, the High Court  observed that no land could be acquired without  payment of compensation. No provision under the Act  was shown to the Court which obliged the owner to  handover vacant possession of the land and to withhold  payment of compensation.  It was not a voluntary sale or  purchase. It was a compulsory acquisition. If the  acquiring bodies felt that there was difficulty in getting  possession, it was for them to make up their mind  whether to acquire or not to acquire such land. No  obligation, however, could be imposed upon the owner to  handover vacant possession of land. No order as to  payment of compensation could be made subject to  condition of handing over possession by the owner. Such  Award could not be said to be an Award contemplated  under the Land Acquisition Act. Though the proceedings  started in 1965 and the Award was passed in 1971, no  compensation was paid till the matter was decided by the  High Court in 1988. The Court, therefore, stated; "The acquisition of land without payment  of compensation is wholly without jurisdiction  and the Award is a nullity."

The Court concluded; "In the instant case, the circumstances  do not warrant withholding of the relief which  the petitioners are otherwise entitled. The  acquisition of the land without providing for  compensation is wholly illegal. The payment of  compensation was made dependant upon  certain conditions to be fulfilled by the party  which is not envisaged under the Land  Acquisition Act. The lands can be acquired  only in accordance with the provisions of the  Act and the award is unreasonable, oppressive  and unfair. The authorities cannot say that  they will keep the land under acquisition  without paying the compensation amount.  Compensation was not paid for over 23 years.  Such an award is alien to the scheme and  intendment of the Land Acquisition Act and is  void. The entire acquisition proceedings  must be deemed to have lapsed. The  petitioners are therefore entitled to ignore  the award and proceed to deal with the  land which admittedly belongs to them."                                 (emphasis supplied)

Regarding insistence by MCH for NOC from the  Housing Board, the High Court held that since the  Housing Board had no title to the property and  admittedly no possession was received by the Board,  requirement of NOC could not be insisted. Moreover, the  Award itself for two acres of land could not be said to be  legal.  MCH was, therefore, directed to consider the  application of the land-owner without insisting for such

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certificate. The petition was accordingly allowed. Though in the appeal filed by the A.P. Housing  Board in the present proceedings, it was asserted that  the decision of the High Court in Writ Petition No. 4194  of 1988 was not final as appeal was filed against the said  decision, at the time of hearing of the appeal, it was  admitted that no such appeal was filed against the  judgment of the High Court and the decision had  attained finality. The consequence of the decision of the  High Court in the circumstances is that in respect of two  acres of land, proceedings under the Land Acquisition  Act were held bad, award nullity and the land-owner  continued to remain owner of the property with all rights,  title and interest therein. If it is so, neither the Housing  Board nor any other person can have any right over the  said land. The Land Grabbing case instituted by the  original land-owners in respect of two acres of land was,  therefore, maintainable and the Court was required to  decide the case in accordance with law.  It is immaterial  that the Housing Board is merely juristic person and not  natural person. The Special Court, in our opinion, considered the  decision of the High Court in earlier petition in its proper  perspective and recorded a finding that Housing Board  was not the owner of the ’petition schedule land’ as  claimed by it. It was also right in observing that late  Farhatulla was held to be pattadar of two acres of  ’petition schedule land’ and the said finding was not  questioned by the contesting respondents other than  respondent No.22 (A.P. Housing Board) at any time. The above finding recorded by the Special Court was  confirmed by the High Court in the writ petition.  It held  that the writ petition filed by the Housing Board was not  maintainable. We see no infirmity in the said finding. It was no doubt contended by the learned counsel  for the Housing Board that the Special Court acquires  jurisdiction to pass an appropriate order under the Act  only if it comes to the conclusion that there is ’land  grabbing’ and the respondent is a land grabber. Once the  Court holds that the respondent is not a ’land grabber’, it  has no jurisdiction to direct vacating the property or  handing over possession to the petitioner and such  action is not known to law. It was submitted that in the  instant case, according to the Special Court, Housing  Board was not a ’land grabber’.  In this connection, the counsel drew our attention  to Issue No.3 framed by the Special Court. The said issue  reads thus: "Whether the respondent is land grabber  within the meaning of the Act?"

       On consideration of the evidence on record, the  Court held that the ’petition schedule land’ was shown to  be ABCDEFGH in Exhibit B-35 plan which was in  occupation of respondent Nos. 4 to 6 (private  respondents) and respondent No. 22 (A.P. Housing  Board). The Special Court then recorded a finding that  respondent Nos. 4 to 6 had perfected their title over the  land in their occupation which were shown in Ex. B-35  within the area marked as ABCDEFGH and, therefore,  those respondents could not be treated as land grabbers.  The Court then stated; "For want of evidence regarding  the identity of the sites alleged to have been grabbed by  other respondents other than respondent No. 22, we find  that they cannot be treated as land grabbers."

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       While dealing with Issue No. 5 as to relief, however,  the Court allowed the petition in part holding the title of  the petitioners over the ’petition schedule land’ which  was shown as ABCDEFGH in Ex. B-35 excluding the area  in occupation of respondent Nos. 4 to 6 and declaring the  petitioners to be owners thereof and issued direction to  Revenue Development Officer to take steps to deliver  possession of the land to the petitioners by evicting  respondent No. 22 (A.P. Housing Board) within two  months from the date of the receipt of the order and to  report compliance.  The High Court upheld that part of  the order of the Special Court.         In our opinion, the learned counsel for the land- owners\027original petitioners is right in contending that  when the acquisition proceedings and Award in respect of  two acres of land was held bad and nullity by the High  Court in previous proceedings, it was not open to the  Special Court or the High Court to ignore the said order.  Moreover, the Special Court was not right in observing  that it was not alleged by the land-owners that the  contesting respondents (private parties or A.P. Housing  Board) were not land grabbers. It was expressly stated by  the land-owners that they continued to remain owners of  two acres of land in view of non delivery of possession of  land to Housing Board and non payment of  compensation thereof. The writ petition filed by them in  respect of two acres of land had been allowed by the High  Court in 1988 and the contention of the Housing Board  was negatived that it had become owner of the land. It  was also not correct to contend that the land was  different, being ABCDEFGH in Ex.B-35, in possession of  respondent Nos. 4 to 6 and respondent No.22. In fact,   the operative part of the order extracted hereinabove in  the earlier part of the judgment clearly shows that  petition was partially allowed as to title of the petitioners  over the ’petition schedule land’ shown as ABCDEFGH in  Ex. B-35 excluding the area in the occupation of  respondent Nos. 4 to 6. It was, therefore, not correct to  say that the petitioners-land-owners had not asserted  that they were the owners of the ’petition schedule land’  nor it can be contended that the land-owners had not  alleged that the respondents were not land grabbers.         The question then relates to claim of appellant  before this Court in Civil Appeal No. 3989 of 2003  instituted by original respondent No.4. As already  adverted earlier, the Special Court has held that  respondent Nos. 4 to 6 had perfected their title by  adverse possession and hence they could not be termed  as ’land grabbers’. According to the Special Court as well  as the High Court, however, they had become owners by  adverse possession in respect of 770 sq. yards of land but  according to respondent No. 4\027appellant before this  Court, he has become owner by adverse possession of  five acres of land. The contention of the land-owners, on  the other hand, is that a finding as to ownership by  adverse possession could not have been recorded by  Special Court constituted under the Act and the Special  Court was in error in recording such finding. The land- owners also contended that in case of other respondents,  the Special Court held that disputed questions of fact  were involved as to whether they had become owners by  adverse possession or not and in the opinion of the  Special Court, such question can be decided only by a  competent Civil Court. Liberty was, therefore, granted to  those respondents to approach an appropriate Civil Court

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if they desired to raise such issue. It was also contended  that even in respect of respondent Nos. 4 to 6, the  Special Court observed that if their case was that they  had become owners by adverse possession of five acres of  land, they could approach a Civil Court and the decision  rendered by Special Court would not come in their way. It  was, therefore, submitted by the land-owners that the  Special Court ought not to have recorded any finding as  regards adverse possession and ought have allowed the  contesting respondents by granting liberty to approach  Civil Court to establish their rights over any part of the  land by adverse possession.         In this connection, reference was made to a recent  decision of this Court in N. Srinivasa Rao v. Special Court  under the A.P. Land Grabbing (Prohibition) Act & Others,  (2006) 4 SCC 214. A two Judge Bench of this Court in  the above case held that the Special Court constituted  under the Act has no jurisdiction to decide question as to  acquisition of title by adverse possession in a proceeding  under the Act as the same would fall within the domain  of Civil Court.         The learned counsel for respondent No.4, on the  other hand, relied on Konda Lakshmana Bapuji and  submitted that a three Judge Bench of this Court in the  said decision has held that such question can be decided  by Special Court. In paragraph 53 of the decision, this  Court observed: "53.    The question of a person perfecting title by  adverse possession is a mixed question of law and  fact. The principle of law in regard to adverse  possession is firmly established. It is a well-settled  proposition that mere possession the land, however  long it may be, would not ripe into possessory title  unless the possessor has ’animus possidendi’ to  hold the land adverse to the title of the true owner.  It is true that assertion of title to the land in dispute  by the possessor would, in an appropriate case, be  sufficient indication of the animus possidendi to  hold averse to the title of the true owner. But such  an assertion of title must be clear and unequivocal  though it need not be addressed to the real owner.  For reckoning the statutory period to perfect title by  prescription both the possession as well as the  animus possidendi must be shown to exist. Where,  however, at the commencement of the possession  there is no animus possidendi the period for the  purpose of reckoning adverse possession will  commence from the date when both the actual  possession and assertion of title by the possessor  are shown to exist. The length of possession to  perfect title by adverse possession as against the  Government is 30 years."         It was also submitted that in N. Srinivasa Rao,  which was decided by a two Judge Bench, the attention  of the Court was not invited to the three Judge Bench  decision of this Court in Konda Lakshmana Bapuji and,  the subsequent decision is per incurium.         In our opinion, it is not necessary to enter into  larger question in the light of the factual scenario before  us. As we have already observed earlier, in the instant  case, in a petition filed by the land-owners as early as in  1988, the High Court of Andhra Pradesh held that land  acquisition proceedings for two acres of land of Survey  No. 45 could not be said to be in consonance with law  and the Award was declared null and void. The

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ownership of the original land-holders remained intact.  The petition was accordingly allowed and MCH was  directed to take appropriate action on application of the  land-owners to sanction layout without insisting NOC by  the A.P. Housing Board. Even in present proceedings, a  contention was raised by almost all respondents that  they had perfected title by remaining in adverse  possession. Liberty was granted by the Special Court to  the contesting respondents to establish their right by  approaching a competent Civil Court. Even in respect of  respondent No. 4 (Civil Appeal No. 3989 of 2003), the  Special Court held that if his claim is that he has become  owner by adverse possession in respect of five acres of  land, it would be open to him to approach Civil Court for  the said purpose. Again, the order passed in favour of  land-owners in 1988 in Writ Petition No. 4194 of 1988  had attained finality and is no more under challenge.  There is an additional reason also for taking this view.   As observed earlier, there is some controversy as to  identity of land in dispute, which can be resolved by a  Civil Court on the basis of evidence to be led by the  parties.  In the light of peculiar facts and attending  circumstances, in our opinion, it would be appropriate if  the finding as to adverse possession is set aside by  granting liberty to all or any of the respondents to take  appropriate proceedings in accordance with law by  approaching a competent Civil Court if they claim title on  the basis of adverse possession.         For the foregoing reasons, in our opinion, the  appeals filed by A.P. Housing Board and respondent No.4  deserve to be dismissed and are accordingly dismissed.  The appeal filed by the original petitioners-land-owners  deserves to be allowed and is accordingly allowed by  setting aside the finding recorded by the Special Court  and confirmed by the High Court on the question of  adverse possession, however, by granting liberty to the  contesting parties to take appropriate proceedings by  approaching a competent Civil Court if they (or any of  them) claim title on the basis of adverse possession. In  the facts and circumstances, however, there shall be no  order as to costs.